Gibbs v. General Motors Corp.

• Decision Date: 10 November 1942
• Docket Number: 38105
• Citation: 166 S.W.2d 575,350 Mo. 431
• Parties: Helen S. Gibbs, Appellant, v. General Motors Corporation, a Corporation, and Rendlen Motor Company, a Corporation
• Court: Missouri Supreme Court

166 S.W.2d 575

350 Mo. 431

Helen S. Gibbs, Appellant, v. General Motors Corporation, a Corporation, and Rendlen Motor Company, a Corporation

No. 38105

Supreme Court of Missouri

November 10, 1942

Rehearing Denied December 1, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. William L Mason, Judge.

Remanded (with directions).

Douglas H. Jones and Barak T. Mattingly for appellant.

(1) The manufacturer of an automobile is liable to the ultimate purchaser for injuries due to a defect in an automobile caused by negligence in its manufacture. MacPherson v Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050; Johnson v. Cadillac Motor Car Co., 261 F. 878; Tayer v. York Ice Machinery Co., 119 S.W.2d l. c. 243; 9-10 Huddy on Automobiles, sec. 210; Berry on Automobiles, sec. 1884; 3 Blashfield, Encyclopedia of Automobiles, pp. 2398-2399; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 66; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 122; Rotche v. Buick, 267 Ill.App. 68; Jones v. Chevrolet, 213 N.C. 775, 197 S.E. 757; Reusch v. Ford, 82 P. 556; Quackenbush v. Ford, 167 A.D. 433, 153 N.Y.S. 431; Smith v. Ford, 202 Ky. 706, 261 S.W. 245; Bird v. Ford Motor Co., 15 F.Supp. 590; Goullon v. Ford, 44 F.2d 310; Olds v. Shaffer, 140 S.W. 1047; Flaherty v. Helfont, 122 A. 180; Baxter v. Ford, 168 Wash. 456, 12 P.2d 409, 88 A. L. R. 521; Kennedy v. Bowling, 319 Mo. 401, 4 S.W.2d 438; McNicholas v. Continental Baking Co., 112 S.W.2d 849; Carter v. St. Louis Dairy Co., 139 S.W.2d 1025; Madouros v. Coca-Cola Co., 230 Mo.App. 275, 90 S.W.2d 445; McCormick v. Lowe & Campbel Athletic Goods Co., 235 Mo.App. 612, 144 S.W.2d 866. (2) Dealer liable. The distributor or dealer who sells automobiles directly to the public is liable to the ultimate purchaser for injuries due to a defect in the automobile, under implied warranty of fitness for the use to which the article was to be applied. American Law Institute, Restatement of Torts, sec. 402; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 67; Darks v. Scudders-Gale Grocery Co., 146 Mo.App. 246, 130 S.W. 430; Fantroy v. Schierer, 296 S.W. 235; Skinner v. Kerwin, 103 Mo.App. 650, 77 S.W. 1011; Barton v. Dowis, 315 Mo. 226, 285 S.W. 988; Arnold v. May Department Stores Co., 337 Mo. 727, 85 S.W.2d 748; Madouros v. Coca-Cola Bottling Co., 90 S.W.2d 445; Smith v. Carlos, 215 Mo.App. 488, 247 S.W. 468; Hutchinson v. Moerschel Products Co., 133 S.W.2d 701; Degouveia v. Lee, 100 S.W.2d 336, 231 Mo.App. 447; Nemela v. Coca-Cola Co., 104 S.W.2d 773; Bell v. Kresge, 129 S.W.2d 932; Flies v. Buick, 196 Wis. 196, 218 N.W. 855; Egan Chevrolet Co. v. Bruner, 102 F.2d 373; Hudson v. Moonier, 94 F.2d 132; Conner v. Atlantic & Pacific Tea Co., 25 F.Supp. 855. (3) Res ipsa loquitur. Where a manufacturer or distributor sells articles to the public which are unfit for the purpose for which sold the res ipsa loquitur doctrine applies. Garfinkel v. Nugents, 25 S.W.2d 122; Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Stolle v. Anheuser-Busch, 271 S.W. 497; Riecke v. Anheuser-Busch Brew. Assn., 206 Mo.App. 246, 227 S.W. 631; Counts v. Coca-Cola Co., 149 S.W.2d 418; Tayer v. York Ice Machinery Co., 342 Mo. 912, 119 S.W.2d 240; Ford v. Walker, 32 F.2d 18; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 122; Jacobs v. Frank Adam Elec. Co., 97 S.W.2d 849. Instrumentality need not be under control of defendant. Kelly v. Laclede R. E. Co., 155 S.W.2d 90.

Wilton D. Chapman for respondent General Motors Corporation.

(1) The mere fact of an accident and resultant injury does not, as a general rule, make out a prima facie case of negligence. Howard v. St. Joseph Transmission Co., 289 S.W. 597; Fuch v. St. Louis, 167 Mo. 620, 67 S.W. 610. (2) Motor vehicles cannot be placed in the same category as a locomotive, gunpowder, dynamite, and similar dangerous machines and agencies, and the rules of law applicable to dangerous instrumentalities do not apply. Steffer v. McNaughton, 142 Wis. 49, 124 N.W. 1016, 26 L. R. A. (N. S.) 382; Cunningham v. Castle, 127 A.D. 580, 111 N.Y.S. 1057; Jones v. Hodge, 47 Wash. 663, 92 P. 433, 14 L. R. A. (N. S.) 216. (3) The manufacturer was not liable to third parties for injuries sustained. There being no privity of contract with appellant, the suit cannot be maintained. Heizer v. Kingsland Douglas Mfg. Co., 110 Mo. 605, 19 S.W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 482; Tipton v. Barnard & Lea Mfg. Co., 302 Mo. 162, 257 S.W. 791; Huset v. Case Threshing Machine, 120 F. 863, 61 L. R. A. 303; Field v. Empire Case Goods Co., 166 N.Y. 509; Isbell v. Biederman Furn. Co., 115 S.W.2d 46; Constable v. Natl. S. S. Co., 154 U.S. 51, 14 S.Ct. 1062, 38 L.Ed. 903. (4) To make out a case for the application of the res ipsa loquitur doctrine the facts relied on ought to be such as reasonably to exclude all defensive inferences attributable by operation of law to the negligence of the plaintiff. Tayer v. York Ice Machinery Corp., 119 S.W.2d 240; Svast v. White, 5 S.W.2d 668; Gibbons v. Wells, 293 S.W. 89. (5) Before the doctrine can be applied the evidence must show that the thing causing the accident was under the control of the defendant at the time of the accident. Benkendorfer v. Garrett, 143 S.W.2d l. c. 1022; Svast v. White, 5 S.W.2d 668; Tayer v. York Ice Machinery Corp., 119 S.W.2d 240. (6) Knowledge of an agent relative to the business of the agency is the knowledge of the principal, provided that knowledge is present in the mind of the agent at the time of a given transaction by him or so nearly prior thereto as to necessarily raise the inference that it remained fixed in his memory. Chouteau v. Allen, 70 Mo. 290; Rickey v. Ins. Co., 79 Mo.App. 485; Fleming v. Ins. Co. of N. A., 50 S.W.2d 117. (7) The petition must not only bespeak negligence, but must locate the same. State ex rel. Brancato v. Trimble, 18 S.W.2d 4.

Joseph N. Hassett and Ernest E. Baker for respondent Rendlen Motor Company.

(1) The petition failed to state facts sufficient to constitute a cause of action against defendant Rendlen Motor Company for negligence. 45 C. J. 840; Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Harke v. Hasse, 335 Mo. 1104, 75 S.W.2d 1001; Garfinkel v. Nugents, 25 S.W.2d 67; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 67; State ex rel. v. Trimble, 18 S.W.2d 4; Tayer v. York Ice Co., 119 S.W.2d 240; 45 C. J. 653; Scheckells v. Ice Plant Min. Co., 180 S.W. 12. (2) The petition failed to state a cause of action against defendant Rendlen Motor Company for the violation of an implied warranty that said automobile was safe and dependable. 55 C. J. 715, 749; 42 C. J. 780, sec. 320; American Law Institute Restatement of Torts, sec. 402; Barton v. Dowis, 315 Mo. 226, 285 S.W. 988; Hoyt v. Hainsworth Motor Co., 192 P. 918; P. D. Belleville Supply Co. v. Dacy, 106 So. 141; Smith v. S. S. Kresge, 79 F.2d 361; Noble v. Sears Roebuck Co., 12 F.Supp. 181; London Guarantee & Acc. Co. v. Strait Scale Co., 15 S.W.2d 766; Seitz v. Brewers' Refrigerating Co., 141 U.S. 510, 12 S.Ct. 46; Reynolds v. General Electric Co., 141 F. 555.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action to recover $ 15,000 for personal injuries. Separate demurrers to the petition were sustained; plaintiff declined to further plead; the cause was dismissed, and plaintiff appealed.

Plaintiff alleged that the Rendlen Company was a local dealer of Oldsmobiles, and that General Motors Corporation was the manufacturer of the Olds; that March 12, 1939, she purchased a new Oldsmobile sedan from the Rendlen Company; that on May 11, 1939, "she was driving her said Oldsmobile sedan, so purchased from defendant Rendlen Motor Company, on U.S. highway 61, about one mile south of Auburn, Missouri, in Lincoln County, on a two lane concrete road, which at that place was dry, straight and level for a long distance in each direction; that while so driving her said automobile and while exercising the highest degree of care on her part, plaintiff applied her foot to the brake pedal of her said automobile in the ordinary, usual and customary manner, with the intent and desire of causing the said automobile to slow down and slacken its speed, but that said automobile at said time and place, and without any fault on the part of the plaintiff, was then and there caused to slue violently to the left of said highway and into a violent head on collision with another automobile coming from the opposite direction, causing plaintiff to sustain" the injuries complained of.

Plaintiff further alleged that "her said automobile, at the time of said collision, had been driven only 1,530 miles from the time of its purchase new from defendant Rendlen Motor Company, and that during the two months intervening between the time of her said purchase to the time of said collision she had had the car serviced and inspected by the said Rendlen Motor Company at the time intervals recommended by said defendant Rendlen Motor Company for such service and inspection, and had not had it serviced, worked on or changed in any manner by anyone else"; that the General Motors Corporation sold to the Rendlen Company the automobile she purchased, and "at all times had complete and exclusive control of said automobile until sold"; that it was sold to the Rendlen Company "for the purpose of resale"; that after she purchased said automobile it was "carefully handled by her and by all persons into whose hands it came", and that "said improper action of said automobile in swerving out of its course was not caused by the fault, negligence, or improper handling of said automobile on the part of any one into whose hands it came after leaving the possession of defendants"; that "the improper action of said automobile is swerving...